ATC-Racing NSW court battle stretches into another day

The legal battle between the directors of the Australian Turf Club and Racing NSW over whether the club should be put into administration is set to extend until Friday after a NSW Supreme Court hearing was adjourned.

The hearing before Justice François Kunc on Thursday featured extensive submissions and discussions by the ATC’s legal counsel Scott Robertson SC and Racing NSW’s representative Oliver Jones SC.

The Australian Turf Club sought to have the current stay order, which prevents Racing NSW-appointed administrator Morgan Kelly from assuming control from the current four-person board, extended until a further hearing, likely to be in February.

However, Racing NSW argued that it should be able to employ its right under the Thoroughbred Racing Act to impose an administrator immediately.

It argued that it was in the public interest for the administrator to be appointed and that a delay until February would increase the risk of the ATC becoming insolvent. It cited a range of financial and commercial concerns.

Justice Kunc, who described the issue as essentially an administrative law case, extended the existing stay order until he was able to issue a further order, and adjourned the hearing until 9:30am on Friday.

Thursday’s hearing also gave an indication of the Australian Turf Club directors’ legal strategy in arguing against the case.

Robertson said there were two questions, one which involved what he said was an inconsistency between a Commonwealth law and a state law and one which was an inconsistency between two sets of state law.

Racing NSW had sought to place the ATC under administration under section 14 of the Thoroughbred Racing Act.  

Robertson also flagged other aspects for consideration, including procedural fairness.

Given the complexity of those arguments, it seems highly unlikely that there would be any clear result at Friday’s hearing, with a further Supreme Court hearing expected to be scheduled in either late January or mid-February.

In that case, what Justice Kunc will likely have to determine on Friday is if he is to continue the ATC stay on proceedings until the next hearing or allow Racing NSW to impose the administrator with immediate effect.